Melbourne Steamship Co Ltd v Moorehead
15 CLR 333BC 1200025
(Decision by: Barton J) Court:
Judges:
Griffith CJ
Barton JIsaacs J
Judgment date: 21 October 1912
Decision by:
Barton J
I am of opinion that the view expressed by O'Connor, J, in Appleton v Moorehead , 8 CLR 330 at pp 379-80, 15 ALR p 241 at p 259, is the correct one --
It was, however, contended by Mr Mitchell, on behalf of the appellant, that even admitting that the Comptroller-General or his officers were not themselves acting judicially, yet in the use that could be made of the section the power was one that could be used not in a court of executive administration, but of judicial proceedings. He argued that as answers extracted from a person interrogated might, if he were subsequently tried, be used in evidence against him, the proceeding was analogous to the taking of evidence de bene esse by a commissioner acting under the order of the court; that, although the commissioner in such a proceeding is not himself acting judicially, yet the taking of the evidence is clearly a part of the judicial proceedings in the cause, and that similarly the power exercised by the Comptroller-General, being in aid of prosecutions or civil proceedings under the Act, was an exercise of judicial power within the meaning of s 71 of the Constitution. The answer to that contention is that there is an essential difference between the two proceedings. When a Judge orders the examination of a witness by commission, the evidence is taken on behalf of the court by its representative, under its order, in a cause pending, and is clearly part of the procedure in that cause. When the Comptroller makes his requirement under s 15B, there can be no proceedings pending in a court. He is not empowered to use the section with reference to an offence when once it has been brought within the cognisance of the court. The power to prevent any such interference by the Executive with a case pending before the ordinary tribunals is undoubtedly vested in this court by the Constitution. I take it, therefore, as clear that at the stage when the Comptroller-General is authorised to apply the provisions of the section, the suspected or alleged offence is no more within the cognisance of a court than if it were under preliminary consideration by the Police Department.
Broadly, on the ground there stated, s 15B was held to be within the constitutional powers of the Commonwealth. If it were read as an interference with judicial proceedings, it would be an exercise by the Legislature of a power vested by the Constitution in the judicature. It cannot be so read if it is, as without doubt it is, open to an interpretation consistent with the Constitution. Such an interpretation removes it altogether from the arena of judicial proceedings, and it follows that such a use of it as was admitted by Mr Sharwood, on behalf of the Crown Solicitor, was unauthorised by law, and that the defendant was not bound to answer the questions administered under cover of this section in an inquiry in aid of pending judicial proceedings. When the point has been reached at which the Crown initiates such proceedings in respect of the subject-matter of the questions, there is no right in the Comptroller-General to institute such an inquiry. That subject-matter has passed into the hands of the court alone. But it is said the questions might have been put in an effort to discover whether the appellants were parties to some contract or combination charged in the information in the prosecution then pending against others as a foundation for proceedings against the defendants themselves. That might properly have been said but for the evidence, which is that the questions were put in aid of the then pending proceedings. In face of that evidence, it is useless to speculate on what might have been. When the appellants refused to answer, they were justified by law, and that is sufficient for the purposes of this case.
On the second point I am of opinion that the very marked difference in expression between ss 15B and 15C evinces an intention that in the first of these two sections the word "person" is not to include corporations. The reason for that difference exists in the fact that s 15B is intended for the eliciting of evidence similar to that of a witness in a forensic investigation, although the proceeding is not a judicial one. A corporation cannot give evidence as a witness, any more than it can make an affidavit, and I think the distinction between a corporation and a person in this regard was intended to be expressed in the terms of these two sections.
I am therefore of opinion that the appeal succeeds on both grounds.